State Of Maha vs Sharad Dashrath Sawre & Anr
2017 Latest Caselaw 2392 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.589 OF 2003

 The State of Maharashtra,
 Through Namdev s/o Vithalrao Jadhav,
 Age-34 years, R/o-Karewadi, Tq-Parali,
 Through Police Station, Ambajogai,
 Dist-Beed.
                                 ...APPELLANT 
        VERSUS             

 1) Sharad s/o Dashrath Sawre,
    Age-30 years, Occu:Agriculture,
    R/o-Chanai, Tq-Ambajogai,
    Dist-Beed,

 2) Dashrath s/o Vitthalrao Sawre,
    Age-55 years, Occu:Agriculture,
    Resident-As Above.   
                                 ...RESPONDENTS

                      ...
    Mr.A.D. Namde, A.P.P. for  Appellant.
    Mr.Satej S. Jadhav Advocate for Respondent
    Nos.1 and 2.       
                      ...

               CORAM:   S.S. SHINDE, J.

DATE : 8TH MAY 2017

ORAL JUDGMENT :

1. This Appeal is directed against the

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Judgment and Order passed by the Ist Ad-hoc

Additional Sessions Judge, Ambajogai in Session

Case No.83 of 2001, decided on 30th May, 2003.

2. The brief facts of the prosecution case

are as under:-

A) PW-4 Namdev Vitthalrao, Jadhav, resident of

village Karewadi, Tq-Parali-Vaijnath lodged First

Information Report alleging therein that deceased

Smita was his sister. Her marriage was solemnized

with accused No.1 before five years from

registering the First Information Report. She had

begotten one child out of the said wed-lock. She

was properly treated and stayed happily for six

months in the matrimonial house. Thereafter

accused Nos.1 and 2 started ill-treating and

beating her, and harassing on the count of

domestic reasons. It is alleged that accused used

to ill-treat Smita to bring the money to satisfy

the domestic expenses. Whenever Smita used to

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visit the parents house, she used to disclose

about the ill-treatment and harassment at the

hands of the accused.

B) It is further alleged that in the summer

season before the death of Smita, when the

informant went to Alandi to do the work as mason

(Mistri), Smita and accused No.1 came at Alandi

for doing the labour work. They stayed their for 5

to 6 days. Thereafter accused demanded Rs.7,000/-

to satisfy domestic expenses. Accused No.1

threatened the informant that in case said amount

is not paid, he will kill his wife Smita by

burning. Accused No.1 in presence of the informant

at Alandi, beat Smita on account of non payment of

Rs.7000/- by the informant. Due to fear of accused

No.1, informant paid Rs.2,000/- to him. Thereafter

accused No.1 with Smita left Alandi and went to

Chanai. Accused No.1 sold golden ornaments of

Smita and started beating her after consuming the

liquor.

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C) It is further alleged that 2 to 3 days

before Rakhi Pournima, brother of the informant,

namely Pandurang had gone to Chanai to meet Smita.

In his presence accused beat Smita and asked

Pandurang to pay remaining amount and refused to

send Smita to the parents house. Before the said

incident, informant and some villagers from his

village, had gone to Chanai and persuaded accused

No.1 not to ill-treat or harass Smita but he

continued the ill-treatment and harassment to

Smita.

D) It is further alleged that on 4th August,

2001, one jeep came to Karewadi from Chanai and

one person from the said jeep informed that Smita

is no more. Thereafter informant and his family

members rushed to Ambajogai and when came to the

hospital, they came to know that Smita consumed

poison at about 4.00 p.m. on 4th August, 2001 due

to ill-treatment by both the accused and died at

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about 5.30 p.m.

3. On 5th August, 2001, the informant lodged

First Information Report at Police Outpost at

S.R.T.R. Hospital. Said crime was registered and

after investigation charge-sheet was filed. After

framing charge, full-fledged trial was conducted

and the Respondents were acquitted. Hence this

Appeal filed by the State.

4. Learned A.P.P. appearing for the State

invites my attention to the evidence of PW-4

Namdev Jadhav (informant), PW-5- Pandurang Jadhav

(brother of informant) and PW-6 Vitthal Jadhav

(father of informant) and submits that if their

evidence is read in its entirety, then it

unequivocally indicates that there was ill-

treatment and harassment to Smita at the hands of

the accused. It is submitted that evidence of PW-3

Dr. Kachre, Medical Officer clearly shows that

Smita committed suicide due to instigation and

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abetment by accused No.1 - Sharad Dasharath Sawre.

He submits that there was no reason for Smita to

commit suicide other than ill-treatment and

harassment at the hands of the accused. Therefore,

he submits that the Appeal may be allowed.

5. On the other hand, learned counsel

appearing for Respondents/accused, relying upon

the findings recorded by the trial Court, submits

that plausible view has been taken by the trial

Court. He submits that there was no endeavour on

the part of PW-4, PW-5 or PW-6 to lodge First

Information Report when they noticed alleged ill-

treatment and harassment or beating to Smita

before her death. It is only after she committed

suicide, First Information Report is lodged. He

submits that there was delay in lodging the First

Information Report. He also invites my attention

to the evidence of DW-1 Usha Balasaheb Survase and

submits that she was residing in the vicinity of

house of the accused at Chanai and she has

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categorically deposed that there was no any

abetment/ instigation or act within proximity of

alleged commission of suicide by Smita. Therefore,

he submits that since the plausible view is taken

by the trial Court, this Court may not cause

interference in the order of acquittal.

6. Upon careful perusal of the evidence of

PW-3 Dr. Rajesh Vijaykumar Kachre, in his evidence

he stated that cause of death of Smita was organo

chloro insecticides (Endulsulpan) and accordingly

he had issued final cause of death certificate.

Upon perusal of his findings, death of Smita was

suicidal and the prosecution case also is that

Smita committed suicide. PW-3 in his evidence

stated that there was no external injury except

intra cardiat injection marks on the chest. On

internal examination of head, the brain was

congested and odematous. It has come on record

that accused No.1 attempted to commit suicide by

consuming poisonous substance and on same day

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after accused No.1 consumed poison, Smita also

consumed poison. In respect of this, there is

discussion by the trial Court in Para 40 of the

impugned Judgment. Said discussion is on the basis

of Exhibit 37 and 38.

7. Upon careful perusal of the evidence of

PW-4 Namdev, it is true that there are allegations

of ill-treatment, harassment and occasional

beating by accused No.1 to Smita. However, in his

cross-examination he stated that though he stated

to the concerned Police Officer that he brought

Smita to Diwali at parents house and she told him

about the demands at the hands of the accused,

those facts have not been mentioned in the First

Information Report. He has specifically stated

that, he did not say to police that he had gone to

his sister at the time of Rakhi Pournima, and

accused No.1 demanded money. Though it is stated

in the deposition before the Court that accused

No.1 threatened Namdev that in case amount of

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Rs.7,000/- is not given to accused No.1 he will

kill Smita, even the said allegations are not

mentioned in the First Information Report.

Further, the allegations of beating at the hands

of accused No.1 to Smita, are also missing in the

First Information Report. Therefore, the trial

Court, so as to find out the truthfulness of the

statement of PW-4 Namdev before the Court, perused

the contents of the First Information Report and

found that, allegations of extending threat or

beating to Smita by accused No.1 are not stated in

the First Information Report. Upon careful perusal

of evidence of PW-5 - Pandurang and PW-6 Vitthal,

it appears that their evidence is hear-say. PW-6

Vitthal, after coming to know that Smita died,

went from Alandi to Ambajogai. It is true that

delay in lodging First Information Report itself

is not relevant factor in every case. However, in

the facts of the present case, it has come on

record that after alleged incident when PW-4 to

PW-6 found that Smita is no more, they discussed

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and deliberated with each other and thereafter

belatedly the First Information Report is lodged

on 5th August, 2001. Therefore, in the facts of

the present case, it cannot be said that delay in

lodging the First Information Report was not fatal

to the prosecution case. Admittedly, marriage of

Smita was solemnized with accused No.1 five years

prior to date of alleged incident. During said

period of five years, no complaint/ First

Information Report was lodged either by PW-4, PW-5

or PW-6. If really there was alleged ill-treatment

started after six months of marriage of Smita with

accused No.1, in that case natural conduct of the

relatives/ PW-4 to PW-6 would have been to lodge

First Information Report or complaint, as the case

may be. It is only after the alleged incident of

suicide by Smita, First Information Report was

lodged by PW-4. Therefore, the alleged ill-

treatment or harassment or as per the version of

PW-4, alleged beating at the hands of accused

No.1, would be remote to connect the alleged

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incident of commissions of suicide by Smita. It

further appears that out of the wed-lock of Smita

with accused No.1, the couple was blessed with one

child and therefore the allegations of ill-

treatment, harassment or beating, belatedly after

more than four years from starting point of

alleged harassment and ill-treatment, have rightly

been disbelieved by the trial Court.

8. It would be relevant to make reference to

the evidence of DW-1 Usha Balasaheb Survase. In

her deposition, she stated that she knew accused

No.1 and Smita since they were residing as her

neighbours. She noticed that prior to the said

incident couple was residing happily. She further

stated that first accused No.1 - Sharad Dashrath

Sawre consumed the poison and thereafter when

accused No.1 was taken to the hospital, Smita

consumed the poison. Thereafter DW-1 informed

about the said incident to one Sarjerao and

others. She further stated that her relations with

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Smita were cordial and good. On perusal of her

cross-examination, her version in the examination-

in-chief is not shattered. Therefore, her evidence

assumes importance in as much as, she has stated

that actual incident of consuming poison by

accused No.1 took place first and at that time she

was present in her house and thereafter also she

was present there. She has not stated about any

ill-treatment, harassment or beating at the hands

of accused No.1 to Smita prior to the incident of

consuming poison by accused No.1 or by Smita.

Therefore, within proximity of alleged suicide by

Smita, there was no any positive act attributable

to accused No.1 in the nature of abetment,

instigation or intentional aid so as to attract

the provisions of Section 107 of the I.P. Code and

consequently to convict him for the offence

punishable under Section 306 of I.P. Code. As

already observed, alleged ill-treatment,

harassment or beating which is not believed by the

trial Court, is too remote to connect with the

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alleged incident of suicide by Smita.

9. The Supreme Court in the case of S.S.

Chheena V/s Vijay Kumar Mahajan and another 1, in

para 25 observed that, the abetment involves

mental process of instigating a person or

intentionally aiding a person in doing of a thing.

Without a positive act on the part of the accused

to instigate or aid in committing suicide,

conviction cannot be sustained. The intention of

the legislature and the ratio of the cases decided

by this Court is clear that in order to convict a

person under Section 306 of the I.P. Code there

has to be a clear mens rea to commit the offence.

It also requires an active act or direct act which

led the deceased to commit suicide seeing no

option and that act must have been intended to

push the deceased into such a position that he/she

committed suicide.

1 (2010) 12 SCC 190

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10. At this juncture, it would be useful to

make a reference to the Judgment of the Supreme

Court in the case of Madan Mohan Singh V. State of

Gujarat and another.2 In said case, the deceased

therein was working as driver under the Ex.

Officer i.e. appellant therein. The said driver

allegedly committed suicide due to harassment and

insulting behaviour by the appellant therein. He

left the suicide note alleging therein that, the

appellant therein asked the driver to keep the

keys of the vehicle on the table and not to take

away them. It was further stated that, "I am going

to commit suicide due to his functioning style.

Alone M.M. Singh, D.E.T. Microwave Project is

responsible for my death. I pray humbly to the

officers of the department that you should not

cooperate as human being to defend M.M. Singh has

acted in breach of discipline disregarding the

norms of discipline. I humbly request the Enquiry

Officer that my wife and son may not be harassed.

2 2010 AIR SCW 5101

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My life has been ruined by M.M. Singh."

. The Supreme Court in the facts of

aforesaid case, while explaining the scope of

Sections 306 and 294 vis-a-vis, the facts of that

case in para 9 held thus:-

"It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross-examination by the appellant/accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant/accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the

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appellant in present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature."

. In the facts of the present case also,

there is no nexus between so called suicide by

Smita and any of the alleged acts on the part of

the accused Nos.1 and 2. There is no proximity

either.

11. The Supreme Court, in recent Judgment in

the case of Heera Lal and another vs. State of

Rajasthan (Criminal Appeal No.790 of 2017) decided

on 24th April, 2017, in Para 6 to 10 held thus:

"6. Having heard the learned

counsel appearing for the parties and

having gone through the evidence, we

are of the opinion that Section 113A of

the Indian Evidence Act requires three

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ingredients to be satisfied before it

can be applied i.e. (i) that a woman

has committed suicide, (ii) such

suicide has been committed within a

period of seven years from the date of

her marriage and (iii) the husband or

his relatives who are charged had

subjected her to cruelty.

7. This Court in an illuminating

Judgment in Ramesh Kumar vs. State of

Chhattisgarh (2001) 9 SCC 618 has

stated the law as follows:-

"This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the

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matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to "all the other

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circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression - "the other circumstances of the case" used in Section 113-A suggests the need to reach a cause - and - effect. Relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in Section 113-A is defined in Section 4 of the Evidence Act, which says - "Whenever it is provided by this Act the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it."

8. We find that having absolved the appellants of the charge of cruelty, which is the most basic ingredient for the offence made out under Section 498A, the third ingredient for application of Section 113A is missing, namely, that the relatives

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i.e., the mother-in-law and father-in-law who are charged under Section 306 had subjected the victim to cruelty. No doubt, in the facts of this case, it has been concurrently found that the in-laws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under Section 113A would apply, it has been fully rebutted, for the reason that there is no link or intention on the part of the in-laws to assist the victim to commit suicide.

9. In the absence of this vital link, the mere fact that there is a finding of harassment would not lead to the conclusion that there is "abetment of suicide".

10. On the facts, therefore, we

find, especially in view of the fact that

the appellants have been acquitted for the

crime under Section 498 A of the Code,

that abetment of suicide under Section 306

is not made out."

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12. In the light of discussion herein above,

I am convinced that the findings recorded by the

trial Court are in consonance with the evidence

brought on record by the prosecution. There is no

perversity as such. The view taken by the trial

Court is plausible view. Even if it is assumed for

a moment that, an another view is possible on the

strength of evidence brought on record by the

prosecution, the same is no ground to interfere in

the order of acquittal when plausible view has

been taken by the trial Court.

13. Therefore, in the light of discussion,

herein above, the Appeal filed by the State stands

dismissed.

[S.S. SHINDE, J.] asb/MAY17